("(a) the Lord Justice General or, if consultation with the Lord Justice General is impracticable, the Lord Justice Clerk; and

(b)").

§
The noble and learned Lord said: My Lords, when we dealt with Committee stage Amendment No. 1 I mentioned that there were three provisions in the Bill under which the Secretary of State is required to consult the Lord Justice General about life prisoners.

§
I think it will be helpful, in moving Amendment No. 1, to deal at the same time with the amendments which
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have been tabled in respect of Clause 10 and Schedule 5. These latter amendments, Amendments Nos. 11, 12, 31 and 32, reflect our acceptance of the point made by the noble and learned Lord, Lord Morton of Shuna, that it should be for the judiciary rather than the Secretary of State to certify an opinion as to what the court would have ordered had certain circumstances obtained at the time of imposing a sentence of life imprisonment. However, they also embody a provision for the Lord Justice Clerk, as an alternative to the Lord Justice General, to carry out the certification after consultation with the trial judge if available.

§
All these amendments therefore reflect acceptance of the points made by the noble Lord, Lord Macaulay of Bragar, which was that if the Lord Justice General is for some reason not available then the Lord Justice Clerk should stand in for him, so to speak. Amendment No. 2 to Clause 1 may require some further refinement at Third Reading, but I hope that these Government amendments are acceptable to those noble Lords who expressed concern at the earlier stage. In particular, I hope that the noble and learned Lord, Lord Cameron of Lochbroom, may feel that in the light of these government amendments he need not move Amendment No. 33. I beg to move.

My Lords, I should like to thank the noble and learned Lord for bringing forward these amendments. Perhaps I may at this stage express my regret that duty has prevented me from attending Second Reading or the Committee stage. But my noble and learned friend Lord Morton of Shuna made clear the thrust of what we were seeking to achieve. I am perfectly content that the amendment, and the consequential amendments, to which the noble and learned Lord has spoken, satisfy what we sought to achieve. I can intimate now that I am not proposing to move Amendment No. 33.

My Lords, I should also like to express my gratitude to the noble and learned Lord, Lord Fraser of Carmyllie, for taking on board the criticisms—if I can call them that—from the Committee stage. I just wonder why, referring to Amendment No. 12, the words,
if consultation with the Lord Justice General is impracticable
have been left out from Clause 10. I think for consistency those words should be included. Otherwise there is no opposition from this side of the House to the amendments proposed.

§
The noble and learned Lord said: My Lords, in speaking to Amendment No. 3 I shall speak also to Amendment No. 4. Amendment No. 3 is in fact consequential upon Amendment No. 4. The purpose of these amendments is to clarify a point on which doubt has recently emerged. As they stand the words in subsection (2) of Clause 2 now appear to be more restrictive than was intended.

§
When a court makes an order under that subsection it will be expected to specify in the order the period which is to be served by the offender before his continued detention on grounds of risk alone. In determining the period—the "relevant part"—the court is to take into account the seriousness of the offence combined with other offences associated with it. The word "associated" could be read too narrowly as meaning only offences charged on the same indictment. The amendments therefore make clear that the courts will also be able to take previous convictions into account. I beg to move.

§Lord Fraser of Carmyllie moved Amendment No. 5:
Page 2, line 28, leave out from beginning to ("shall") in line 30 and insert ("Where a court which imposes life imprisonment for an offence such as is mentioned in subsection (1) (a) above decides not to make such order as is mentioned in subsection (2) above, it shall state its reasons for so deciding; and for the purposes of any appeal or review, any such order and any such decision").

§
The noble and learned Lord said: My Lords, in Committee I undertook to consider, after consulting the Lord Justice General, Committee stage Amendment No. 6 which was moved by the noble and learned Lord, Lord Morton of Shuna.

§
Amendment No. 5 reflects the fact that all concerned now accept the point made by the noble and learned Lord, to whom I am most grateful. As he said, if the court decides not to make an order under subsection (2) of Clause 2 then it should give its reasons. Amendment No. 5 will require it to do so. I beg to move.

§The Lord Advocate (Lord Rodger of Earlsferry) moved Amendment No. 6:
Page 3, line 32, at end insert:("( )) In section 71(7) (a) of the said Act of 1984 (categories of prisoner who may be transferred to hospital), the words "in criminal proceedings" shall cease to have effect.").

§
The noble and learned Lord said: My Lords, it might be for the convenience of your Lordships if I were to deal also with related Amendments Nos. 7, 8, 9, 10 and 36. We are again indebted to the noble Lord, Lord Macaulay of Bragar, whose amendments to Clause 4 in Committee I was unable to accept. Nonetheless, that led me to examine the provisions in the clause and those in the Mental Health (Scotland)
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Act 1984. That closer examination revealed a number of defects which the amendments are designed to correct.

§
Section 71 of the 1984 Act enables the Secretary of State to make a transfer direction in respect of a person who is in custody and who requires to be transferred to a mental hospital to be treated for mental disorder. I am sure that the provisions in that section were originally intended to apply, as they obviously should, to anyone who is in custody as a result of court proceedings. What has now emerged is that they do not. Because of the existing terms of Section 71, certain prisoners are excluded. A person imprisoned for contempt, or for breach of interdict, for example, could not lawfully be made the subject of a transfer direction.

§
Because the periods of imprisonment involved are relatively short, that defect has not so far given rise to any practical difficulty, and it is perhaps unlikely that it would have done so. Nevertheless, it seems right to take account of the defect and to put it right. Amendment No. 6 is designed to serve that purpose.

§
Amendments Nos. 7 and 8 are consequential drafting changes. Amendment No. 9 corrects a further minor defect in those provisions. There would be no point in providing, as in subsections (9) and (10) of the new Section 74, for the continued detention in hospital of a person detained under the Immigration Act if that person, on release from custody, is to be removed from the United Kingdom. The amendment therefore excludes such persons from the scope of those subsections. If it is decided that an Immigration Act detainee who has been transferred to hospital is to be allowed to remain in this country, and if his continued detention in hospital is necessary, authority for such detention could as now be obtained by way of other procedures under the 1984 Act.

§
In connection with Amendment No. 10, your Lordships will see the words "sentence of imprisonment" in Clause 4(1). It is intended that those words should include within their scope the types of imprisonment imposed for contempt or fine default. Provision for the release of persons imprisoned for those reasons is made in Clause 5. Amendment No. 10 is intended to ensure that there is no doubt about the meaning of the expression used in Clause 4(1) as including the types of imprisonment dealt with in Clause 5. I am afraid that I have had to inflict a technical explanation on your Lordships, but I beg to move.

My Lords, as I understand it, the purpose of the amendments is to clarify certain provisions of the Mental Health (Scotland) Act. If a person who is subject to a restriction order is taken into hospital for the reasons stated, and, thereafter, is kept there under supervision
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for a period of, let us say, two years, during which time the period of imprisonment would otherwise have elapsed, what will be the result of the restriction order coming to an end at the conclusion of that period of time, he having, as it were, already served a period which would be the equivalent, and more, to the period which he would otherwise have been confined in prison?

The noble and learned Lord may not be able to answer that point at the moment, but it is one to which consideration should be given, because in those circumstances the prisoner, as he would then be, should be treated differently—perhaps as a person who would otherwise be released from hospital on a normal discharge in the event of his mental illness having improved.

My Lords, I am not sure what particular point the noble and learned Lord is raising. In general terms the purpose of the provisions is to deal with people who are not convicted. I am not familiar with the example given by the noble and learned Lord, but I shall look into the matter and write to him.

On Question, amendment agreed to.

§Lord Rodger of Earlsferry moved Amendments Nos. 7 to 9:
Page 3, line 39, leave out from beginning to ("or") in line 41.Page 4, line 1, leave out (", (b)").Page 5, line 10, after ("effect") insert ("other than by virtue of subsection (8) above").

§Lord Fraser of Carmyllie moved Amendments Nos. 11 and 12:
Page 9, line 43, leave out ("Secretary of State, after consultation with the").Page 9, line 44, after ("General") insert ("or the Lord Justice Clerk").

§
The noble and learned Lord said: My Lords, it may be convenient if we consider together Amendments Nos. 13, 14 and 15. The first and last of the amendments are drafting changes in consequence of the second, which substitutes a reference to the High Court in place of the first reference in Clause 19 to the Clerk of Justiciary. I am indebted to the noble Lord,
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Lord Macaulay of Bragar, for drawing attention in Committee to the need for these amendments. The Clerk of Justiciary has himself pointed out that it is more appropriate for the High Court rather than for him to decide whether late appeals should be allowed. I beg to move.

§Lord Fraser of Carmyllie moved Amendments Nos. 14 and 15:
Page 17, line 26, leave out ("Clerk of Justiciary") and insert ("High Court").Page 17, line 29, after ("court") insert ("which made the determination").

§Lord Fraser of Carmyllie moved Amendment No. 16:
Page 31, line 43, leave out paragraph (a) and insert:("(a) a Lord Commissioner of Justiciary;").

§
The noble and learned Lord said: My Lords, the amendment is the same in effect as Committee stage Amendment No. 26 which was moved by the noble and learned Lord, Lord Morton of Shuna. The purpose is to ensure that the specified core membership of the Parole Board for Scotland includes a serving High Court judge. Having consulted the Lord Justice General, as I undertook to do, I am now satisfied that the amendment is acceptable to all concerned. I do not propose to repeat what was said at Committee stage by the noble and learned Lords who moved and supported the amendment, but would merely thank them for drawing attention to the need for this improvement in the Bill. In moving the amendment, I invite rejection of Amendment No. 17. I beg to move.

§
The noble Lord said: My Lords, this matter was raised in Committee. Clause 24 allows for additional days for disciplinary offences to be imposed upon a prisoner. During the debate the noble and learned Lord, Lord Fraser of Carmyllie, said:
We are not entirely satisfied with the orderly room procedures for the award of such punishments. The Scottish Prison Service Board proposes to implement changes recommended by an internal working group which was set up to consider how those procedures might be improved. The changes which will stem from the recommendations of that group will bring orderly room procedures into line with current perceptions of natural justice as developed by the courts".—[Official Report, 2/6/92; col. 884.]

§
We were all satisfied with what the noble and learned Lord said on that. Subsequently I asked him whether a copy of the working group report could be published so that we could consider it. The noble and learned Lord, Lord Fraser, helpfully wrote to me on 17th June as follows:
555The working group was an informal one, without terms of reference".

§
Perhaps I may comment upon that. I find it a little surprising that a working group or working party should be established by a government department with apparently no terms of reference whatever. The noble and learned Lord continued:
It produced no written report, but advised the management of the Scottish Prison Service that practices and procedures needed considerable tightening up. This was endorsed, and those responsible for training were asked to consider how to accommodate in existing programmes additional training preparatory to the implementation of new procedures. That consideration is in hand".

§
I have an important question rather than a statement. I find it surprising, first, that we have a working party without terms of reference and, secondly, that it does not produce a written report. I am not clear how the Scottish Prison Service can consider the views of a working party which does not produce a written report. Having served in different capacities in three government departments, I am bound to say that I have not heard of such procedures. No doubt the noble and learned Lord can help us on the matter. I should be interested to know how he could be briefed on what the working party said, given that there was no written report. It seems puzzling.

§
The noble and learned Lord went on to deal with changes to Prison Rules in Scotland. He said:
These will be considered in the context of the wholesale revision of the Rules, on which work is now proceeding. Any changes which are introduced will be given proper publicity, and any proposed changes to the Rules will of course be placed before both Houses of Parliament".

§
I and others, I am sure, will be interested to know when the process is likely to be completed. The matter is of considerable public importance and we should like help from the noble and learned Lord on it. I beg to move.

My Lords, I recall the exchange that we had at Committee stage. As the noble Lord indicated, I subsequently wrote to him and he has accurately quoted from my letter, beginning at the second sentence of the third paragraph. However I began that paragraph by saying:
During the debate on Clause 24, I made reference to the fact that an internal Scottish Prison Service working group had been looking at the conduct and procedures of Governors' orderly rooms; that is, the system of internal prison discipline as prescribed in Prison Rules 38 to 47".
It is clear from that sentence that there are more rules than merely those affecting orderly room procedures.

However, I do not find it as surprising as the noble Lord that, as my letter continued, having looked merely at these rules in isolation, the working group determined that there should be a considerable tightening of the practices and procedures. However, the group's apprehension was that to seek to do that in isolation was not the correct way forward. A better way forward, and one which ties in with other matters that arose, is that there should be a wholesale review of the Prison Rules in Scotland. As I am sure the noble Lord is aware, that follows a number of references and cases which went to the European Court of Human Rights. In that context, a wholesale review or revision has been necessary. It was perhaps
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unfortunate that it was not possible to tighten up those orderly room rules in isolation and in advance of the whole revision.

However, I can tell the noble Lord that the review is in progress. I cannot tell him when it will be completed but he will be aware that it is not just a simple matter of a quick tidying up. We have had to look in great detail at how we approach matters. I can only say that the review will proceed in a broad fashion and I repeat the undertaking that I gave to the noble Lord in the letter that any changes which are introduced will be given proper publicity. I also repeat the undertaking that:
any proposed changes to the Rules will of course be placed before both Houses of Parliament".
I hope that that explains why the context has to be broader than possibly I indicated at Committee stage, and why we have decided to take the matter forward in this way.

My Lords, before the noble and learned Lord sits down, can he give your Lordships' House an indication of how long the process of revision has been going on? My recollection is that it seems to have been about two years. One would look for results by now; perhaps at least a draft of the revised rules being produced.

My Lords, I accept that the review has been going on for some time. I sought to convey to the noble Lord, Lord Harris, the difficulty about the review, which is that the situation keeps changing. There have been decisions of the European Court of Human Rights which, to a greater or lesser extent, may affect the content of the rules. If we cease to have any further change or innovation requiring more detailed re-examination, obviously that would be desirable. But if we can get on with the review as expeditiously as possible, we shall do so, as we have done. The results will be made public and placed before both Houses.

My Lords, I am much obliged to the noble and learned Lord. I still find the procedure of a working party without terms of reference and without publishing a report mildly odd, but I accept that it is a substantial issue. I hope that on reflection the noble and learned Lord will be able to give us an indication of when the process will be concluded. Will it be within one year, two years or when? Perhaps he would like to reflect on the matter and consider whether it is possible to write to the noble Lord, Lord Macaulay, and myself before the next stage of the Bill. That would be extremely helpful. With that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Provision in prison rules for directions]:

§Lord Fraser of Carmyllie moved Amendment No. 19:
Page 20, line 11, at end insert:("( ) Any reference, however expressed, in any enactment other than this section to rules made under this section shall be construed as including a reference to direction's made by virtue of subsection (8) above.").

§
The noble and learned Lord said: My Lords, there could be doubt as to whether any statutory reference to the Prison (Scotland) Rules is to be taken as including reference to directions made under those rules by virtue of the provisions of subsection (8) which Clause 24 adds to Section 39 of the 1989 Act. This amendment would avoid that doubt. I beg to move.

§
The noble and learned Lord said: My Lords, this amendment fulfils another undertaking I gave at Committee stage to clarify that the statutory provisions concerning destruction of records apply to any record or copy print or impression taken under the powers in the clause. I beg to move.

§(".—(1) Subject to subsection (3) below, a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible, if the following conditions are satisfied—

(a) the document was created or received by a person in the course of a trade, business, undertaking, profession or other occupation, or as the holder of a paid or unpaid office; and

(b) the information contained in the document was supplied by a person (whether or not the maker of the statement) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

(2) Subsection (1) above applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it—

(a) in the course of a trade, business, undertaking, profession or other occupation; or

(b) as the holder of a paid or unpaid office.

(3) A statement prepared for the purposes—

(a) of pending or contemplated criminal proceedings against; or

(b) of a criminal investigation respecting,

a particular person or particular persons shall not be admissible by virtue of subsection (1) above.".

§
The noble Lord said: My Lords, this amendment was discussed to some extent during the Committee stage in relation to the difficulties being encountered in cases where a large amount of documentation was being produced. I readily accept that in its present form the amendment is defective and not full enough to cover all the requirements. However, it has been put forward at this stage in view of the recent comments made by the Lord Justice General, Lord Hope, on the need for statutory provisions for Scotland on the subject of documentary evidence in criminal proceedings. His Lordship made these comments in the course of his opinion in the Lord Advocate's Reference No. 1, 1992, where the court considered difficulties which had arisen over the admissibility of certain documents,
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including computer-generated documents, to which the Criminal Evidence Act 1965 did not apply. Indeed the evidence from the computers was not admitted in that case because there was no provision to do so.

§
"In the course of his judgment his Lordship said:
'It is a matter for regret that Parliament has not yet been invited to legislate for Scotland on this matter, so that the inconvenience of the hearsay rule in regard to evidence from documentary records in criminal cases may be reduced to the extent now permitted in England in terms of sections 68 and 69 of [the Police and Criminal Evidence Act 1984]. The present case illustrates the urgent need for consideration to be given to a measure of this kind, in order to relieve the Crown of the difficulties to which the sheriff has referred. I consider that it is beyond the powers of this Court to introduce a relaxation of the hearsay rule to the extent now permitted by these sections'.

§
The sheriff referred to in the quotation was the original presiding judge. I need not quote further from the judgment of the Lord Justice General at this stage, but the issue is a practical one relating to the presentation of evidence in cases where evidence is bound to come from a computer-based source among other things. In allowing that to take place one has to ensure that the acceptance of that evidence is dealt with fairly in relation to the position of the accused because it constitutes a fundamental breach of the hearsay rule.

§
Any document admitted under the principle set out in Amendment No. 21 would still be open to challenge on relevancy and competency. The amendment has been tightly drawn to ensure that documents are limited to any document,
'created or received by a person in the course of a trade, business, undertaking, profession or other occupation, or as the holder of a paid or unpaid office'.

§
That means we are dealing with business or trade records. A personal diary for example would not be permitted to be received under the amendment, nor would a police notebook or precognitions taken by the Crown or the police pending criminal proceedings.

§
I accept that the amendment is defective at present. There would have to be a new definition clause in relation to trade, business, profession, undertaking or other occupation. There would also have to be provisions for certifying the source of the document. The Scottish Law Commission is, I understand, looking at these matters in great detail. However, a full report has not yet been published. If the Government are prepared to consider the whole matter between now and Third Reading I shall be happy to withdraw the amendment and await any amendments which the Government may wish to table. I beg to move.

My Lords, I certainly support the principle which lies behind the amendment. The noble Lord, Lord Macaulay, accepts that the amendment has certain defects, but the principle has already been the subject of statute. Section 1 of the Criminal Evidence Act makes provision for relaxing the rule against hearsay in certain special circumstances. I add one cautionary note. Care would have to be taken that the form of any drafting does not impinge upon the ability of the
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court, and indeed the parties, to deal by agreement with documentary evidence, such as will be proposed, I trust, by the Minister in his Amendment No. 24.

My Lords, I very much welcome the amendments of the noble Lord, Lord Macaulay. They are obviously proposed with a view to reducing the need to bring to court witnesses who would give purely formal evidence. That is particularly desirable in a case involving computers as it is impossible for witnesses to give useful evidence.

The problem highlighted by the Lord Justice General in the opinion to which the noble Lord, Lord Macaulay, referred, arose because of the restrictive terms of Section 1 of the Criminal Evidence Act 1965. It is therefore necessary, given the developments which have occurred, to reconsider the terms of that section and indeed to reconsider altogether the form in which this kind of evidence should be given.

The Scottish Law Commission considered this area of criminal evidence in Scotland. Among the issues is the question of hearsay evidence in criminal proceedings. The commission issued a discussion paper in 1988 and has carried out work on the matter since then. Following the Lord Justice General's opinion, the Law Commission produced a paper setting out its considered views on the matter relating to documentary records. I do not think I can sufficiently thank publicly the chairman of the Scottish Law Commission, Lord Davidson, and Sheriff Macphail for the work they have done in the short period since the judgment was issued.

In the light of that work I shall carefully consider the amendment which the noble Lord, Lord Macaulay of Bragar, has tabled. I shall study its terms and consider how it should be amended in the light of the considerations of the Scottish Law Commission. I anticipate that I shall wish to consider the matter further on Third Reading. I shall accept the amendment of the noble Lord today, consider the terms of the clause as it will then be, and come back on Third Reading to deal with amendments to the clause.

My Lords, I am grateful to the Minister for the course he has taken. I am also grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for his contribution which no doubt will have been noted by the Government.

§
The noble and learned Lord said: My Lords, the noble Lord, Lord Macaulay, moved an amendment in Committee to delete subsection (2) from Clause 30. Following my undertaking to consider the position further, he withdrew the amendment.

§
The noble Lord was concerned in Committee that there could be a problem about the meaning of the phrase "proceedings commenced." I have therefore looked at subsection (2) again. The purpose of the
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subsection, as I stressed in Committee, is to get the maximum benefit from the subsection as soon as possible.

§
However, on reconsideration, although we do not think there is a problem over the use of the phrase, we have decided nonetheless that it might be proper simply to withdraw the subsection. That is in effect the purpose of the amendment. I hope that my explanation will deal with any concerns that the Law Society has about the clause. I beg to move.

My Lords, once again I express my appreciation to the noble and learned Lord the Lord Advocate for the course he has adopted.

On Question, amendment agreed to.

Clause 32 [Evidence of children on commission]:

§Lord Rodger of Earlsferry moved Amendment No. 23:
Page 24, line 12, at end insert:("; but to be so appointed a person must be, and for a period of at least five years have been, a member of the Faculty of Advocates or a solicitor.").

§
The noble and learned Lord said: My Lords, in Committee the noble Lord, Lord Macaulay of Bragar, sought to amend Clause 32 to ensure that the person who was appointed by the court as a commissioner would be someone with legal qualifications. At that stage I indicated to the Chamber that we would take the matter away and consider whether that provision should appear on the face of the Bill. At that stage the noble Lord, Lord Macaulay, withdrew his amendment."

§
The amendment which we now bring before your Lordships' House gives effect to the principle underlying the noble Lord's point, but is slightly more specific in its terms. It is right that a commissioner appointed for the purposes of this provision should be either a member of the Faculty of Advocates or a solicitor with due experience, and we have provided for that by specifying five years' standing.

§
I am grateful to the noble Lord for drawing attention to the matter. I beg to move.

§Lord Rodger of Earlsferry moved Amendment No. 24:
After Clause 36, insert the following new clause:New circumstances on notice of which preliminary diet may be ordered(".—(1) Section 76 of the 1975 Act (which specifies various circumstances on notice of which a preliminary diet shall or may be ordered) shall be amended as follows.(2) In subsection (1)—(a) after paragraph (b) there shall be inserted the following paragraph—(bb) that there are documents the truth of the contents of which ought in his view to be admitted, or that there is any other matter which in his view ought to be agreed, the court may make such order as is mentioned in paragraph (a) above;"; and(b) in paragraph (c), for the words "or (b)" there shall be substituted the words ", (b) or (bb)".(3) In subsection (7) (c), after the word "paragraph" there shall be inserted the words "(bb) or".").

§
The noble and learned Lord said: My Lords, during the Committee stage my noble and learned friend
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Lord Fraser undertook to consult the judiciary on the scope of Section 76(1) (c) of the 1975 Act in relation to the matters which could be considered at a preliminary diet. That process of consultation has been carried out. The view of the judiciary is that an amendment along the lines proposed would be a welcome addition to the powers of the court in order to enable preliminary diets to be convened purely to try to agree evidence. On that basis I am glad to present the amendment to the House. I beg to move.

My Lords, I should like to express my appreciation of the Government's acceptance of the amendment which was put down in the name of my noble and learned friend Lord Morton and myself in Committee. I hope that it will be of considerable benefit in trying to secure that parties, and more particularly representatives of those appearing at criminal trials, will understand that they have an obligation to try to clarify the real issues which lie between them and the remaining parties in any criminal trial, whether it be a jury trial or a summary trial. Too often there has been a feeling that it is enough for those appearing to allow issues to be obfuscated, without intending to do so, and, indeed, to fail properly to bring before the court the true issues.

From my experience, if this path were to be followed, and documents could be agreed so that they could be presented to juries and explained simply as they stand, without the necessity to have witnesses appear to speak to them, the matter would be made much easier for lay persons and juries to understand. It would have the added benefit, one would hope, that at the end of the day there may be some shortening of trials.

I am extremely grateful to the noble and learned Lord the Minister and his noble and learned friend the Lord Advocate for what has been done in this regard. I accept that their amendment (Amendment No. 24) properly goes further than Amendment No. 25 in the name of my noble and learned friend Lord Morton and myself and I do not propose to move that amendment.

My Lords, before the noble and learned Lord the Lord Advocate replies to the noble and learned Lord, Lord Cameron of Lochbroom, perhaps I may raise a minor matter. I have just noticed that the word "admitted" is used in line 2 of paragraph (bb) but the word "agreed" is used in the penultimate line. Is there a distinction between admitting something and agreeing something? Does the word "admitting" imply something more sinister than agreement? While accepting the principle of the amendment, for the reasons which the noble and learned Lord, Lord Cameron, explained, I wonder whether for consistency the noble and learned Lord would consider whether it might be better to use "admitted" twice or "agreed" twice—or is there an explanation for the use of the two different words?

My Lords, regarding the point raised by the noble Lord, Lord Macaulay, I have
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come across some counsel who are prepared to agree things but never to admit them in case that is somehow more incriminating of their clients. Apart from that, and a welcome and refreshing elegance of language in the change, it does not seem to me that there is a great deal of difference between the two words. Nevertheless, I shall look at the matter, but I do not believe that there is any significance in the difference.

I am very grateful to the noble and learned Lord, Lord Cameron of Lochbroom, for having drawn the matter to our attention. I concur entirely with what lie said. One of the defects of our procedure is that we do not manage to refine the issues sufficiently. It is to be hoped that this measure will have some effect in leading to a further refinement of the issues in trials. If it does not work it may be necessary to think of something else.

§
1A. The court may, at its discretion, if it considers it to be in the interests of justice, relieve any party from the consequences of any failure to comply with the provisions of this Act which is shown to be due to mistake, oversight or other cause, not being wilful non-observation of the same on such terms and conditions as shall appear just; and in any such case the court may make such order as may be just by extension of time, or lodging of documents so as to enable the case to proceed as if such failure had not happened.".").

§
The noble Lord said: My Lords, Amendment No. 26 is something of a rogue amendment. It has been included to focus on an issue which has been troubling some people for some time.

§
Whereas in the civil courts, and certainly in the Court of Session, the court has an overall discretion to overlook non-compliance with the rules of court and to allow a case to proceed under such conditions as the court may apply to the case, in criminal cases no discretion whatever is given to the court if the procedure under the Criminal Procedure (Scotland) Act 1975 is not complied with. The object of the amendment in its present form is to raise the issue and ask why, if discretion is good enough in civil cases, it cannot be built into criminal cases.

§
There are many cases in which technicalities win the day and justice and the public interest are defeated. I do not need to remind the noble and learned Lord, Lord Fraser, or the present Lord Advocate of the cases which can be seen throughout the Law Reports. There have been many cases in which people have walked out of court on the basis of a pure technicality such as, for example, a minute not being properly recorded. The public must have shaken their heads in wonder and asked what sort of system of justice it is for the public, let alone the individual, when people are allowed to walk away from court without a verdict from the jury on the evidence. Of course justice must
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be seen to be done even-handedly between the prosecution and the accused, but the law should not be brought into disrepute by an over-technical approach.

§
The wording which I have used in the amendment is taken from the preface to the rules of court. Some anxiety has been expressed in the time I have had to discuss the matter with other practising members that the 110 day rule, which is the cornerstone of Scottish criminal procedure might be affected by this approach. For example, there is anxiety that if the 110 day rule were not to be observed, the court could say, for instance, that only one day had gone by, that there was no prejudice to the accused and continue with the trial. I appreciate that that is a legitimate and sincere point of view.

§
However, if need be the 110 day rule could be removed from the discussion because it is an absolute rule which puts pressure on the Crown Office to get on with the preparation and presentation of cases and ensure that people are not kept in prison for unnecessarily long periods, such as happens in this part of the world where people can be in prison for a long time and then be acquitted. I seem to recall having read of a case recently in which someone had been in prison in England for 18 months before coming to trial. I accept, therefore, that the 110 day rule is an important feature of the Scottish legal system, but consideration could be given to excluding it from the general provision giving the court discretion to overlook matters, on explanation and on compliance with the Act.

§
The amendment reads:
The court may, at its discretion, if it considers it to be in the interests of justice, relieve any party from the consequences of any failure to comply with the provisions of this Act which is shown to be due to mistake, oversight or other cause, not being wilful non-observation of the same on such terms and conditions as shall appear just; and in any such case the court may make such order as may be just by extension of time, or lodging of documents so as to enable the case to proceed as if such failure had not happened".

§
In other words there is built-in protection for the accused. If he claims that there has been some form of prejudice arising out of the ruling of court, the court will make sure that he is given an extension of time and so on, as seen in the amendment.

§
One problem, which occurred to me after tabling the amendment, is that sometimes the court itself is at fault—for example, in not signing a minute. If the court itself were at fault, obviously it could not correct its own fault. That being so, consideration might have to be given to the Court of Criminal Appeal being asked for its opinion immediately to deal with any fault on the part of the court. The Court of Criminal Appeal could exercise the discretion which would normally be exercised by the single judge.

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I hope that the Government will at least show some interest in the matter. I feel sure that they will. It is important to ensure that the system of criminal law in Scotland serves the community as well as the individual. I beg to move.

My Lords, I suspect that the noble Lord has taken the form of words of the amendment from the rules of court of the Court of Session. I counsel a certain degree of caution.

The rules of court in civil matters are rules which the court itself has passed. It is only right that it should retain a discretion, if it considers it appropriate in the interests of justice in a particular case, to overlook failure to comply with provisions which it has set down. We are dealing here with provisions for criminal procedure which are set down by Parliament. I should be reluctant to allow wider discretion to the courts to deal with failure to comply with statutory provisions where Parliament, within the context of those provisions, has allowed for the court to exercise a degree of discretion on cause shown. That is a phrase which appears in various sections where procedure is set down with certain time limits.

I am very conscious of one particular case. A detailed time limit set down by Parliament was not complied with—for reasons with which I need not trouble the House—in the service of indictment. The matter caused a great deal of public concern when an accused person was in effect acquitted, or did not have to stand trial on a charge brought by the prosecution. That seemed to me a salutary lesson from which the Crown learnt; namely, that timetables are very important in protecting the interests of the accused. I suggest that the House should be very cautious in extending the power of the court at its own discretion to relieve any party, which would include the Crown, from what are clear time limits set down procedurally for various steps, all of which are intended to protect the accused and sometimes, likewise, to protect the Crown.

My Lords, I fully appreciate the thinking which lies behind the amendment of the noble Lord, Lord Macaulay. However, in conjunction with my noble and learned friend Lord Cameron of Lochbroom, I believe that it goes too far too fast. As the noble Lord, Lord Macaulay, acknowledged, it would have the consequence that the statutory safeguards—the time limits, the 110-day rule and the 12-month rule—would be subject to some form of judicial discretion.

I believe that there is a role for fixed time limits in criminal procedure. Those safeguards have served prisoners well in Scotland over the years. At the same time I acknowledge there are cases in which the rigid application of particular rules can lead to results which seem to the general public not entirely consistent with justice I submit that, when considering the matter, it would be better to look at whether a particular provision should have associated with it some power, on cause shown, to dispense with the limit, as occurs in the case of certain provisions of the Act.

I propose that when the Government next review the 1975 Act they should consider whether there are any other sections of the Act where a dispensing power of that sort on cause shown could be attached rather than an overall dispensing power which, as I
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said, would have undesirable effects. In the light of that explanation, I hope that the noble Lord, Lord Macaulay, will feel able to withdraw his amendment.

My Lords, I am grateful to the noble and learned Lord the Lord Advocate for his contribution and also to the noble and learned Lord, Lord Cameron of Lochbroom, who gives the House the benefit of his long experience both in the office of Lord Advocate and now as a High Court judge in Scotland.

The message I am getting is, "Proceed with caution but we shall have a look at it." I think that that message comes from both speakers. I am prepared to stay at the amber light for a little while, but if it does not change within the next couple of years, perhaps I shall bring the issue back again. I should be interested to know when the next review of the 1975 Act will take place.

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The noble and learned Lord said: My Lords, the purpose underlying Clause 39 is to facilitate the procedures where the prosecutor is of the view that a conviction cannot be sustained. In many respects, the provisions in Clause 39 mirror those which are currently contained in Section 453 of the Criminal Procedure (Scotland) Act 1975.

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The purpose of the amendment was to remedy an inconsistency within the clause between the current subsection (7), which sets out time limits within which the prosecutor should act, and subsection (1).

§
On closer examination, the effects of the amendment would be to limit the scope for action by the prosecutor to the point at which the appeal was intimated to him and not at any later stage. I am sure your Lordships would agree that, in the circumstances where a conviction cannot be sustained, the
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prosecutor should have greater flexibility to minimise the expense on the part of the accused and also to avoid the unnecessary waste of court time.

§
In those circumstances I propose to present to your Lordships at Third Reading minor amendments to enable the prosecutor to enjoy greater flexibility than the current amendment would allow. Having explained the basis for the amendment, I beg to move.

§Lord Fraser of Carmyllie moved Amendment No. 29:
Page 35, leave out lines 14 to 18 and insert (", for the words "three weeks" there shall be substituted the following paragraphs—

"(a) where the accused is remanded in custody, three weeks; or

(b) where he is remanded on bail or is ordained to appear, eight weeks but only on cause shown and otherwise four weeks".").

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The noble and learned Lord said: My Lords, during our consideration of the Bill at Committee stage, the noble Lord, Lord Macaulay of Bragar, moved an amendment to increase the four-week period to six weeks. I opposed such a change. The amendment before your Lordships' House does not arise out of a change of heart on my part. It does not move the period from four weeks to six weeks, as was proposed, but to eight weeks. That is not a sudden change of heart on my part. But there has been a decision in a recent case before the Court of Appeal in Edinburgh concerning the powers of the court to adjourn for sentence in order to obtain matters such as the DVLA printouts on an offender's previous record.

§
The Appeal Court ruled that Sections 179 and 380 must apply in such circumstances. The experience of the court is that, in order to obtain such printouts, a period of six weeks is normally required. It makes sense to allow the court, in those cases to be able to adjourn for an appropriate period rather than to reconvene within four weeks in the knowledge that the case would have to be further adjourned.

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I might take this opportunity to inform your Lordships that neither the original provisions in the Bill nor this proposed amendment will in any way alter the period of time in which social workers are expected to prepare their reports. Social workers operate to nationally agreed standards which specify the maximum desirable period of three weeks, when the accused person is ordered to appear, and two weeks when he is remanded in custody. The Consultation Group on Offender Services, which includes representatives of local authorities, social work directors, the police and the judiciary, last considered this time limit in April 1990. They concluded then that a three week period was reasonable and achievable. Neither the clause nor the amendment will alter that period.

§
The amendment will nevertheless provide a degree of flexibility, which I hope will be used only in the limited circumstances envisaged. I beg to move. On Question, amendment agreed to.

§
275.—(1) The Clerk of Justiciary may direct that a transcript of a record made under section 274(1) of this Act, or any part thereof, be made and delivered to him for the use of any judge.

§
(2) Subject to subsection (3) below, the Clerk of Justiciary shall, if he is requested to do so by—

(a) the Secretary of State; or

(b) any other person on payment of such charges as may be fixed for the time being by the Treasury,

direct that such a transcript be made and sent to the person who requested it.

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(3) The Secretary of State may, after consultation with the Lord Justice General, by order made by statutory instrument provide that in any class of proceedings specified in the order the Clerk of Justiciary shall only make a direction under subsection (2) (b) above if satisfied that the person requesting the transcript is of a class of person so specified and, if purposes for which the transcript may be used are so specified, intends to use it only for such a purpose; and different purposes may be so specified for different classes of proceedings or classes of person.

§
(4) Where subsection (3) above applies as respects a direction, the person to whom the transcript is sent shall, if purposes for which that transcript may be used are specified by virtue of that subsection, use it only for such a purpose.

§
(5) A statutory instrument containing an order under subsection (3) above shall be subject to annulment in pursuance of a resolution of either House of Parliament.

§
(6) A direction under subsection (1) or (2) above may require that the transcript be made by the person who made the record or by such competent person as may be specified in the direction; and that person shall comply with the direction.

§
(7) A transcript made in compliance with a direction under subsection (1) or (2) above—

(a) shall be in legible form; and

(b) shall be certified by the person making it as being a correct and complete transcript of the whole or, as the case may be, the part of the record purporting to have been made and certified, and in the case of shorthand notes signed, by the person who made the record.

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(8) The cost of making a transcript in compliance with a direction under subsection (1) or (2) (a) above shall be defrayed, in accordance with scales of payment fixed for the time being by the Treasury, out of money provided by Parliament.

§
(9) The Clerk of Justiciary shall, on payment of such charges as may be fixed for the time being by the Treasury, provide a copy of any documentary production lodged in connection with an appeal under this Part of this Act to such of the following persons as may request it—

(a) the prosecutor;

(b) any person convicted in the proceedings;

(c) any other person named in, or immediately affected by, any order made in the proceedings; and

(d) any person authorised to act on behalf of any of the persons mentioned in paragraphs (a) to (c) above.").

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The noble and learned Lord said: My Lords, the amendment represents an important relaxation of those provisions in the Criminal Procedure (Scotland) Act 1975 which govern the availability of transcripts of evidence led in solemn proceedings. Recent experience has indicated that the existing provisions are unduly restrictive in their effect. The 1975 Act requires that transcripts should be made available only where an appeal is outstanding or where an applicant is an interested party in the proceedings, as defined in Section 275(5). Those restrictions have created certain difficulties which two examples may serve to illustrate. Convicted persons who have already exercised their right of appeal and wish to obtain a transcript of the proceedings at their own trial in order to prepare a petition to the Secretary of State concerning an alleged miscarriage of justice have not readily been able to obtain such a transcript, despite undertakings to meet the transcription or photocopying costs entailed. A further example concerns professional bodies which might legitimately seek a transcript of evidence in connection with disciplinary proceedings relating to alleged professional misconduct. Such bodies would not be eligible under the present law to receive such a transcript, since they would not be interested parties in terms of the strict statutory definition.

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In such cases the Government consider there to be good reasons both in the interests of natural justice and in the public interest for transcripts of evidence to be more readily available. The position in England and Wales is that a transcript may be supplied to an interested party or any other person on payment of the costs involved. I understand that the arrangements south of the Border operate satisfactorily and the charges involved have the effect of deterring frivolous requests. I am sure your Lordships will agree that it is
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both sensible and equitable that our provisions should be relaxed in line with the present English arrangements. Evidence led in open court is already in the public domain and, subject only to the recovery of reasonable costs, our policy is that access to transcripts should generally be unrestricted.

§
Your Lordships will observe that the new sections incorporate provisions already in the Bill which are designed to take account of prospective developments on the tape recording of proceedings. I beg to move.

My Lords, I welcome the amendment. I confirm that over the years there has been a great sense of injustice, whether or not justified, in the minds of many people convicted of serious crimes because of inaccessibility to the shorthand record. One has to bear in mind that all the proceedings have been held in public. It did not make sense for people to say, "You cannot have what is already on public record". No doubt there were records in newspaper offices and elsewhere. I welcome that part of the amendment.

I make one observation on new Section 274(2) which states:
A shorthand writer shall sign the shorthand notes taken by him of such proceedings and certify them as being complete and correct".
How can the shorthand writer certify his notes as being correct? I should have thought that the provision should finish at the word "complete". We all know that mistakes are made in shorthand reports of proceedings. The new section also states that,
A shorthand writer shall retain the notes".
That appears to mean that if a person is called in to take shorthand notes he can just stick them in his pocket and walk away with them. I wonder whether there might be a tightening up of the wording to ensure that the notes are retained for future use by someone in authority: that the notes shall be retained by the Crown Office, or whatever, for future use.

New Section 274(3) (b) states:
A person recording such proceedings by mechanical means
—presumably by tape recorder or otherwise—
shall certify that the record is true and complete".
What does the word "true" imply? It is either a complete recording by mechanical means or it is not. The word "true" might lead to some difficulties in interpretation in the future.

New Section 274(3) (c) states:
A person recording such proceedings by mechanical means shall retain the record".
Again we have the same problem. That seems to give to the shorthand writer or the operator of the machine —whether or not he is acting in an official capacity —the right to retain the shorthand notes and the record of a tape recording. I envisage that there might be difficulties in obtaining the notes or the recording at a future date in some years' time when an appeal is being considered. I raise the point in passing. Perhaps the noble and learned Lord the Lord Advocate will consider whether the shorthand notes or a record by mechanical means can be required more precisely to be placed in some official custody.

My Lords, the noble Lord raises a point for consideration. In the existing Section 275 the direction is to retain the shorthand notes unless and until the shorthand writer is directed by the clerk of justiciary to forward a transcript. As the present position stands, he has to retain the notes for ever and a day even though in the interim the clerk of justiciary may invite him to send a transcript. It is a matter of wording.

My Lords, I shall consider the point that the noble and learned Lord, Lord Cameron of Lochbroom, has made. I believe that the noble Lord, Lord Macaulay, has misunderstood. As I understand it, the purpose of retaining the note is that the shorthand writer shall not destroy them, perhaps by throwing them in his wastepaper basket once the trial is over. He should keep them in perpetuity until the request that he transcribe them.

I shall consider the certification again. I believe that such wording is fairly standard on documents in such circumstances.

My Lords, will my noble friend tell the House where the shorthand writer is expected to put the notes? Does he have to have a great chest of drawers in his sitting room? The provision does not state where he retains them.

My Lords, so long as the notes are retained, it is a matter of no particular anxiety to us whether he keeps them at home, in his office, or wherever. Shorthand notes are rather personal, like our own handwriting. Shorthand writers tend to have their own distinctive styles. It is important that the shorthand writer should have the notes and should be in a position to refer to them at a time when it is required or requested of him that the notes should be extended. But there is no requirement that they be kept in a bank vault or anywhere like that.

My Lords, we cannot allow the position in which shorthand writers are wandering about with notes and keeping the only record of proceedings in their attics, perhaps to he lost for ever. What will happen if an appeal is lodged some years after the case, as sometimes happens, and the notes are requested? It may be said that so-and-so said this and so-and-so said that and the Crown may say that they did not. The only way to resolve the matter will be to obtain the shorthand notes. I am trying to be constructive and not nit picking.

Perhaps it may be necessary to discuss the matter with shorthand writers to ensure that shorthand notes and records taken of proceedings by mechanical means become part of the courts' documents to he retained as part of the court process. I do not know where the Crown's documents are kept but perhaps they should include shorthand notebooks or any tape recordings that were made during the course of the proceedings. I put that forward as a helpful suggestion for the Government's consideration.

My Lords, that is why there is the requirement of retention. It is important that shorthand notes are not dispensed with. I am sure
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that the noble Lord appreciates that in Scotland shorthand writing is not done on an ad hoc basis. It is undertaken by a number of competent firms which keep records and notebooks in a careful manner. I shall look to see whether there needs to be an improvement in the way they are kept but I know that usually the notebooks remain with the people who took the shorthand notes.

On Question, amendment agreed to.

Schedule 5 [Transitional Provisions and Savings]:

§Lord Fraser of Carmyllie moved Amendment No. 31:
Page 40, line 48, leave out ("Secretary of State, after consultation with the").

§Lord Fraser of Carmyllie moved Amendment No. 32:
Page 40, line 48, leave out ("and, if available, the trial judge") and insert ("or Lord Justice Clerk, after consultation with the trial judge, if available").

§Lord Cameron of Lochbroom moved Amendment No. 34:
Page 40, line 52, at end insert ("and the Secretary of State shall, within a reasonable time after section 2 of this Act comes into force, submit the case of any such existing life prisoner to the Lord Justice General for the purpose of obtaining such certificate.").

§
The noble and learned Lord said: My Lords, the purpose of the amendment is to ensure that in the case of any existing life prisoners, as is defined in the clause, the Secretary of State shall, within a reasonable time after the coming into force of Section 2 of the Act, submit the case to the Lord Justice General for the purpose of obtaining the certificate which is relevant to this clause. We wish to ensure that there is no back sliding in the submission of all cases which would be covered by the clause and if there were to be an unreasonable time, to allow the individual life prisoner to proceed by way of judicial review to have the matter brought before the Lord Justice General as soon as possible. The amendment may be otiose because one would expect the Secretary of State to do that which is required of him within a reasonable time but it is there in majiorem cautionem. I beg to move.

My Lords, I understand the purpose of the amendment and I do not believe that anyone will disagree with the logic that underlies it. However, I hope to be able to persuade the noble and learned Lord that the amendment is unnecessary. At present there are only 26 people in custody in Scotland who are serving discretionary life sentences or equivalent sentences. Our intention is to move faster than is provided for in the noble and learned Lord's amendment. It is that all the relevant information in each case should be assembled before the provisions of the Bill are brought into force. They should be submitted to the Lord Justice General on the commencement date, or shortly thereafter, so that he will be in a position to issue the certificates with the least possible delay. It is obviously necessary that the
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position of existing discretionary life prisoners is clarified as quickly as possible. I suggest, therefore, that the Secretary of State does not need to be compelled by statute to attend to the matter.